Windmill decision in town hands

PRINCETON - Massachusetts Land Court Judge Keith C. Long has remanded back to the planning board a lawsuit related to the windmill project to see if the board wants to change an earlier decision.

The lawsuit was filed by Westminster Road resident John Mollica against planning board members, CEI Mass Wind, LLC, Community Energy, Inc. and the Princeton Municipal Light Department. CEI is the firm partnering with PMLD to upgrade the wind farm.

In his March 1 decision, Long sent the case back to the planning board following his ruling that the board has the authority under the bylaw to deny site plan approval for the wind farm expansion if it believes denial is appropriate. According to Long, the planning board rendered its decision to approve the site plan based upon the incorrect belief it had no authority to deny the wind farm application, only to approve it with conditions.

"It is conceivable that the Board would have reached a different decision had it known it had the power of denial, and I cannot assume that the decision before me is the same decision that would have been rendered with that knowledge," Long wrote in his decision.

Long allowed summary judgment on certain issues, ruling that Mollica does have standing to bring the legal action, and that the zoning bylaw does allow wind farm use at the site. He deferred a decision on the remaining summary judgment issues until after the planning board's decision on remand. He gave the board 90 days to file its decision with the court.

Mollica's attorney filed the suit in Land Court in July 2004, after the planning board approved site plan review for the Princeton Municipal Light Department's proposed wind farm upgrade. That plan includes the removal of the seven existing 100-foot steel lattice wind towers and replacing them with two, 230-foot monopole wind towers.

Mollica contends the planning board exceeded its authority when it approved the plan and alleges the board's decision didn't meet either the purpose or the criteria for approval under the local zoning bylaws. He asked the court to declare the planning board decision to be the equivalent of a special permit, which does not take place until an appeal has been dismissed or denied. He also asked the court to enjoin PMLD and CEI Mass Wind, LLC from taking any action to implement the proposed expansion of the wind farm and asked the court to award him his cost of suit, including reasonable attorney's fees.

Attorneys for the town questioned whether Mollica has standing to appeal the planning board decision, and whether he could appeal the decision to Land Court without going through further administrative remedies. The parties filed cross-motions asking the court for summary judgment on whether the zoning bylaw permits the wind farm use, and if so whether the planning board's site plan approval was based on a proper assessment of the bylaw's criteria and within the board's allowable discretion.

Mollica contends that a wind farm operated by a private entity cannot lawfully be sited in a residential-agricultural district under the town's zoning bylaw and that the planning board's site plan approval did not properly assess the facts in light of the bylaw's criteria.

In his decision, Long allowed summary judgment on certain issues, agreeing with the town that the wind farm is a municipal use and thus permitted in a residential-agricultural. Princeton will continue to own the site, and will own the facility as well at the conclusion of the 20-year lease with CEI, Long wrote.

He ruled that Mollica does have standing to bring the action against the planning board and that the planning board's site plan approval can be appealed directly to Land Court.

Of the five areas where Mollica contends he has standing, Long found two have merit: light and visual impact on his property. "The Princeton bylaw specifically requires consideration of 'visual and noise buffers' the protection of environmental features, and 'general site compatibility with abutting properties,'" Long wrote. "Thus, visual impacts are protected interests."

The towers will be plainly visible from Mollica's house and will be considerably higher than the surrounding tree canopy, Long wrote. PMLD's own studies indicate some degree of "flicker" may reach Mollica's home and it can be reasonably inferred that the strobe lights placed on the towers will cause some amount of light to shine on his house, he said.

The judge found that Mollica doesn't have presumptive standing on other issues, noting Mollica is not an abutter to the site nor within 300 feet of the property line of the access road.

On the issue of noise, Long ruled evidence was insufficient because Mollica's facts were based on the existing wind towers and the new towers will be slower and quieter. Mollica's belief that the new wind turbines will grow noisier over time, either from lack of maintenance, aging or otherwise, is unsupported speculation, Long wrote. "It is also contrary to common sense, since the efficiency of the turbines is key to their ability to generate electricity, and the profit seeking operators of the turbines, particularly since there are only two such turbines, will have every incentive to keep them operating efficiently," he wrote.

On the issue of ice falling from the turbines, Long noted that the ice doesn't actually fall on Mollica's property, but allegedly onto public roadways and hiking trails that the public might use, so the claim is not unique to him.

Costs may be awarded to opposing counsel if an affidavit was presented in bad faith or solely for the purpose of delay. The judge did not find bad faith in Mollica's submission and denied the town's motion for costs.

If there are no material changes to the planning board's original decision, the remaining issues will be decided on the papers and arguments previously submitted, Long said. If there is a material change, the parties will be given the opportunity to supplement their previous submissions.

"In reading the decision, for the most part, I believe the decision of the judge keeps the project whole and allows construction to go forward," PMLD manager Jonathan Fitch said. "This is a municipal use and the decision reaffirms our own internal belief that it is a municipal use for public purposes. I think that's the most important finding in the judge's decision.

"At the end of the day the project can still get built. If anything, it allows the planning board to revisit its decision. Given the overwhelming support during the original site plan review process I don't believe they would change their decision. We welcome the planning board's reopening the hearing to discuss anything about the project they feel they'd like to talk about based on the Judge's decision." Mollica said, "No decisions or any amount of legal maneuvering, on either side of these cases, seems to be resolving the safety issues at the town's wind farm. Two weeks ago Londonderry, Vermont rejected a wind farm proposal. It was too close - 400 feet - to a ski area. Yet, Princeton's proposed blades will be nearly overhead, above the state hiking trails.

"The same weather that just collapsed the Princeton windmill blew a blade off of an eight-year-old windmill at the Searsburg, Vermont wind farm. They haven't found the blade yet. There, they keep two spare $80,000 blades onsite because this happens so often. Due to safety, Searsburg has a noaccess policy - you can't get near the place. Even in the summer time, during their guided tours they shut the machines off.

Mollica said he's proposed both publicly and through the lawyers to drop all cases if the defendants will meet wind-industry standards for safety at the Princeton site.

"There has yet to be a response to my offers," he said. "I believe I'll be the least of the problems when it comes to future wind farm litigation. In the meantime, despite six structural failures, ice putting holes in roofs and showering the state trails, Princeton's wind farm and the area around it is still open to the public."